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tv   Landmark Cases New York Times v. United States  CSPAN  May 1, 2018 12:01am-1:38am EDT

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does. that is why congress triggered the war on an actual proceeding. the government was ready to go forward with an actual proceeding, when there were charges identified and a time and place of the preceding identified. the governmente expressed abstract intention of seeking removal in the force -- in the future. thank you council, the case is submitted. on c-span, landmark cases continues with the new u.s. imes v israeli prime minister benjamin netanyahu on the iran nuclear program followed by review of the russian elections. everyone, listen up, listen up, we've got a decision, we've got a decision. the supreme court made a decision.
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6-3.e vote is, >> 6-3, we win, we win. all persons having business before the honorable, supreme court of the united states admonished to go out there and give their attention. >> landmark cases, c-span , produced inry partnership with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. justice, may it please the court. good evening and welcome to c-span series landmark cases. it is new york times company versus the united states. in this 1971 case the supreme court ruled 6-3 against the
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nixon administration and a big win for journalism. the decision of new york times and the washington post -- post, right to publish classified information on the history of the vietnam war over significant objections from the pentagon and the white house. tohave two terrific guests help us understand how this case unfolded and what it means for us today in our society. let me introduce you to floyd abrams. the best-known first amendment lawyer, he was cocounsel in new york times case. he is now an attorney in new york city where he focuses on first amendment and media law. also the guest professor at columbia university. welcome to our program. backe pleased to welcome ted also. he has argued 63 cases in private practice and for the government before the supreme court, including as the general from 2001 to 2004. one of his key cases representing president bush, he
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is also a partner now in washington. we are pleased to have you back. you were with us on the first are and we are flat -- we glad to have be back for a second season. we will start with funding stash wrong understanding how and narrow the decision was. what did the court actually find>? >> the court found that the times in the post cannot be restrained in advance from publish and a prior restraint, as it is known. , a very heavy birding, that the government has to overcome, they have to show real, irreparable harm to the country. that the government had failed to do that. that was the ruling of the court .
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in addition to that ruling, there were nine separate opinion spy members of the court. all agreedile they that prior restraints are difficult, very difficult to obtain, the vote in the case with 6-3 as we just heard. times andfavor of the the justices ranged considerably . what they said about that from a very modest victory to a very broad one. at the end of the day, the ruling was that the government, even during a war, even when there were american prisoners of war held by the enemy during enoughr, had not shown that publication of this how wecal study of became involved in vietnam would do terrible harm. if it is a narrow decision and prior restraint of the first amendment. what about this case has made it a landmark decision?
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>> this was a very, very big decision. is the nixon administration attempting to stop the washington post and the new york times from publishing absurd -- excerpts from the pentagon papers. the is a big, huge study of oregon -- origins and the conduct of the vietnam war. the government was saying it is very important, it is dangerous to our national security if this material is published and made available to the public. the supreme court of the united this 6-3 decision said no, we will not stop the publication. it may have violated the law, that is a possibility. you might want to prosecute people criminally for violating the law, if you can prove that, in advance,not stop a publication of material in the public interest. press underl the
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the first amendment that you cannot speak. during tea that there cannot be sanctions for publications. >> that is correct. opinions of some of the justices who voted for the times, justice white and justice stewart in particular indicated that a criminal prosecution could be brought, and might have .ucceeded or in mind the case came up. quickly and the members of the court, as some of them complained. were not deeply meshed in the fact that -- and the fact of the case. they really left it to the government to persuade them, which the government failed to do. that publication would do great harm. when you read those opinions, a majority of them thought it would do harm.
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i think it is worth saying it did not. a majority of the members thought the publication would do harm, and nonetheless, that the times and the post could publish. we always look at the constitution provision under examination. reads as amendment such. congress shall make no law prohibiting the free exercise thereof. ofabridging the freedom speech, or the right of the people peaceably to assemble, and to put titian -- and to petition the government for a redress of grievances. before the 1971 case there was earlier cases. we had 1931 new york times was theullivan, what law about how far the press could go in publishing prior to this case? >> the most important case was
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the 1931 case. it,articular, a line in which in the course of saying that prior restraints were terribly difficult, almost impossible to be issued by court , they offered in exception. timing ofion was that ships sailing in time of war. sides the case, both spent a lot of time arguing if whether this was like a ship sailing in war, or whether publication of this material, or how we got into the war of vietnam was akin to the sailing dates of ships during the war. that 19 31 case helped enormously and was by far the closest case. it was not that close. the closest case there was. that: bs penny arch --
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was not what though i was looking into. i want to ask what we should know about that law. is an oldionage act statute. it is very unclear as to what it prohibits and under what circumstances it would impose punishment on someone who leaked materials who communicated interest and information that might do damage to the national security. there was an argument in this case about how far it went. it did not authorize the government to stop publication of a document. it imposed criminal penalties or fines on someone who disclose national security information. the court specifically pointed out in this case that there was no statute that gave the government the power to ask the court to stop the publication of
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materials. this business about prior restraints is very important. speaking,omeone from or stop someone from publishing, it will not happen. cane are a lot of things i be done. you can take risks by speaking abouting or speaking something. tot 1931 case was an attempt stop the publication of defamatory material. it was an expose by the newspaper. you can stop the publication of defamatory material and the supreme court said, no, you cannot do that. the principle is, if you stop someone from speaking, it will not be heard. .hat is a very, very difficult under the first amendment, which says, congress shall make no law abridging the freedom of the press. >> there was a time when the only thing that the supreme was protected by the first amendment was against prior restraints.
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1905, we wrote in opinion saying just that. that prior restraints or what the first amendment is all about, and only what the first amendment is about. we have come a long way since then, but the person is really what everyone historically has agreed upon most, it is the prior restraints, limitations and advance on speech are the most dangerous, the most limiting, and therefore, the morals protect it against activity of the government. asan: we will move from constitutional legal framework from the case. before we do that let me tell you how you can be involved. if you live in the eastern or central time zone's call us and you can get into queue and we will get the calls throughout the program. if you live in a mountain or zone, 20274 88901.
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you can send us a tweet, we love mixing tweets throughout the program. use the #landmark cases. and mix your comment in. 1971 the vietnam war was beginning to falter for the united states. inre were 156,800 soldiers vietnam down from a higher of 334,500 just one year earlier. u.s. deaths in 1971 down from 6081 in 1970. back here in the home time the war's popularity was diminishing. we are going to move on to the cast of characters. starting with the pentagon papers. ?hat were the pentagon papers >> the defense secretary had the idea as the war got worse and worse with fewer and fewer ways
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out, it seems to commission a study. a historical study. how did we become involved in the war. who did what and why were we there. one might think you do the study before you enter the war. done that. secretary mcnamara commissioned that study and got together within the defense department. scholars and other used highly classified defense department documents to prepare a study of how it went going back to world war ii and thereafter. susan: why did they want to keep the paper secret? >> it was interesting because this was the nixon administration that was in charge at the time that this litigation was brought.
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most of the material in the pentagon papers was embarrassing and harmful to previous administrations because, as floyd said, the study went back to the truman administration, that to the end of the second world war. it was particularly embarrassing because -- it embarrassing to president johnson, maybe to a certain degree to president kennedy. notnixon administration was so badly embarrassed by the contents of the material that was indicated that the government have lied to the american people, had done various different things that were quite damaging. the nixon and ministration became convinced, in part because secretary kissinger may particularly strong arguments. leaks,don't stop these where is it going to stop? you have got to be able to stop this kind of broadscale leaking of classified, dangerous information, or there is no
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stopping point. we will have no credibility in the rest of the world about our ability to keep secrets if we cannot keep this secret. this was 7000 pages of material. bishop blake: you mentioned -- susan: you mentioned president nixon. knowshould some people about his relationship with the press as we get into this case? much more about this than i do. everybody who lived during that time or has studied it, knows that president nixon was not a fan of the press. and vice versa. the did not like the press because they have been critical of him. the per trade him in ways in which he did not like. -- they portrayed him in ways he did not like. he was concerned about his vulnerability to the press. a hostile, difficult,
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and tortured relationship that he already had with the press. something like this comes along and he sees that they are publishing secret information and that might be something else next. he is going to react to do what ever he can to stop it. give: i will ask you to people a sense of what the new york times and washington post, the two petitioners were like in 1971. very different media landscape than what we experience today. there were newspapers then, and only newspapers and three television networks. the heart of the information givers in the country. there were local newspapers around the country. very often one newspaper in a town, are one newspaper in a city. sometimes if you newspapers in a state. newspapers were the primary place most people got their news. three television networks, nbc,
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cbs and abc. sources, the great bulk of the information that came to the public and the world is very different now. susan: this is our first case in a series with the chief justice. what should people know about him? >> this court that decided this case, there were five of the justices who had been appointed by republicans. it was a very different person than his predecessor, earl quite famous for protecting civil liberties and opening new areas of individual rights and so forth. the chief justice and warren had bid from minnesota and had appealsn the court of
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for the district of columbia circuit. he was very interested in the orderly processing of judicial decisions, the structure of the court, how decisions got me, how state courts worked in that ink. he was a much more businesslike jurist than his predecessor. be a: it would not pentagon papers case without daniel. who was he? >> he had been a marine in the war in vietnam. he was an intellectual, he had favored the war in its early days and had come to believe that it was a war crime. he had come to believe that we were doing things in vietnam that violated international laws and principles of morality. he was one of the authors of the pentagon papers. he was a scholar.
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he was one of the authors commissioned to write chapter of the pentagon papers. he came to the view that if only the public could see the degree to which it had been lied to through the years, which perpetuated american presence in vietnam, that they would demand that the war and. he felt notwithstanding our victory and notwithstanding everything else that happened. he feels today that he failed. for releasing this information, for risking jail to himself for a very long time was to end the war. while the publication was very newsworthy, and it affected
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public opinion, it did not do that. have said that this is a very accelerated case. it has taken years to get to the supreme court. me watch you through this very quick timeline that this case was under. to the june 13, 1971 publication of the first story, the newspaper had gotten the material from daniel. by june 15 the times received -- and the government seeks a restraining order. june 18 the washington post published its first story on the pentagon papers. by june 19 the second court of appeals rejected the injunction. on june 22, the second court of appeals grants the injunction, arnold think that is correct. picks upsupreme court the case, oral arguments were heard on june 26. here is another interesting thing will talk about later.
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on june 29 the united states senator from alaska and to the pet -- entered the papers into the senate records for the subcommittee and the court announced its decision by june 30. a very rapid discussion in this case and we will learn about the implications of that as we go forward. first, a video, we will introduce you to hendrix smith, he was a longtime new york times reporter and happened to be one of the new york times reporters who was writing the story. he talked to us recently and told us how the new york times got the information and how the paper conducted its work to publish that for story. eye for solid papers in the hilton hotel on six avenue in new york. she got an a hotel room at the 35th floor. we had to filing cabinets full of paper. for chores, h wars of paper, tens of thousands of pages of documents. we just started to go through them. jenna had just begun looking at
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them by the, got there. theas just amazing to see amount of material and to look at one document after another, top secret, talks -- top secret, top secret, eyes only, that means only the president or the commander and joint chiefs of staff can see it. we started to go pouring through out how to do stories about them. there were so much material that it was almost impossible to figure out how to handle it journalistically. the organization of the pentagon papers. we took 13 chapters and spread them out and basically dealt with them in that way. in the end of think we came out with different days on which we ran the papers. the government's argument was that publishing the papers would harm national security. this was history. of these events were older. we are talking about the eisenhower years, kennedy's,
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then the johnson years of the late 1960's. here we are in 1971, there was only one part of the pentagon events were still unfolding. that was called a diplomatic annex. it was all about the different efforts and peace channels there were to negotiate settlement between washington and hanoi. that andne look at said if we write about that we don't know whether or not those channels are still alive. we could harm diplomacy. we will not go into that. we were mindful of actual national security needs. let me show you the headline that came out of that were heard it was june 13, 1971. vietnam archived three decades of growing u.s. involvement. it was the byline for that story. was there an immediate reaction
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in the country for this? the first story? it is something that grew, it was a page one story, it was a big story. it was clear that it was a big story. they did not publish the entirety of the rest of the pentagon papers. months editinge them to decide what was newsworthy and what would help national security beyond the one chapter smith talked about. it was a big deal from the moment it started to be .ublished it was not surprising that the stronglyration reacted to it. the question was, what they do anything about it, or would they simply condemn the times. between the press and
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the nixon administration are hostile. one possibility could have been simply to minimize it. which one might do if one was afraid of national security secrets being revealed. minimize it and announce the times. that is not the way the administration decided to go. created asident nixon historical treasure trove for the country by taping his oval office conversations. we are going to listen to a portion, when on june 13, between alexander haig, and richard nixon, and henry kissinger and richard nixon, talking about the new york times and how the administration should respond. [video clip] >> it is very significant, the new york times expose.
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the most highly cut spot documents of the war. >> i didn't read the story. that was leaked out of the pentagon? >> the whole study done by mcnamara and carried on after mcnamara left, by clifford and the peaceniks over there. this is a devastating security breach. >> what is being done about it then? did we know this was coming out? >> no, we did not, sir. >> we are putting them on notice that they are violating a statute. this thing was -- -- he just walked in, he is on the other line. >> we had a pretty good go up there on the committee. it is all over town and all over everything. i think we will look a little silly if we took this low-key
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accident. >> it will take a fairly hard line on it? >> in a legal opinion if it is the violation of the law. >> look, as far as the times are concerned they are out of -- they are our enemies. tell him what you just heard. he called johnson and he said that it is johnson strong view that this is an attack on the government. file cabinets can be stolen and then made available to the press. he can have orders in the government anymore. susan: we are looking at it to the lens of history. i want to hear what both of you have to say about those conversations unfold and the urgency with which they brought these matters to the president. >> it is wonderful to hear it. it is marvelous. ted: those words, god damn new york times.
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>> and, they are our enemy. that must ring true today. that, that is a pretty loose way to make a decision, it is an unlawful and -- and thoughtful and unserious way to make a decision, to court and implicate various strong first amendment's. susan: you have been on the government side and speaking about whether or not to litigate. what is your reaction? >> this is regarded by lots of people, and legitimately as very serious. these were all documents, and many of them marked top-secret. the government decided these are sensitive documents, when that classification is applied to a document on record, it means the
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government has determined, responsible people in the government have determined it would be dangerous to the united states and the security of the united states if that information was shared publicly port leaked out. the one hand, they were concerned. this was a massive breach of national security. when you have this magnitude of top-secret materials and they knew at that point that some of it had come out in the new york times. also thought this was probably just the tip of the iceberg. there was a lot more, and they were not sure at that point how much more was yet to come and where was it coming from. >> and i think the last thing ted said is a very important point, they were never sure, even though we told them during the case, effectively, what documents the new york times had.
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it should be said of the 7000 pages, 3000 were copies of the new york times and other newspapers. stamped top-secret, one page after the other. the other 4000 pages all ended as of 1968, three years before this began. they were designated top-secret, and the way the government works now, as then, any document out of a series of documents that has a higher designation -- everything is wrecked at the ranked at a higher designation and they did not know what was in the pentagon papers, and looking back on it, we do know what was in that. while there was some things that
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most of which the new york times did not publish, having spent most of the month having prewitt -- pruning it for national security, we do know that a lot of times past. we have not seen an article since them saying, now we know, look what happened. look at the terrible things that had -- that have happened as a result of publications. i wrote in article 10 years after the pentagon papers came out in which i interviewed all the participants who would talk to me to ask me what happened. none of them could cite anything harmful. 43 volumes and 7000 pages of material. when the new york times quickly went on to the washington post, the story that was depicted in steven spielberg's movie, we are going to show you the headline that came out in june 18 in the washington post. there are similar documents from 1954 to delay the election.
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this is the first story. we are going to return to hedrick smith on other papers publishing the pentagon papers. let's listen. when ellsberg was smart enough to go to the washington post, then the chicago tribune and other papers, to keep getting other papers to print more of the pentagon papers, to show the government that it could not stop the publication. the other papers new that they would not get thrown in jail and that they would not be accused of treason. >> what on earth are you doing?
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>> we will follow your lead and publish the papers. >> at least we're not alone. just a small eye roll here because the new york times was the first of publish the papers. drama, after all. i wanted to ask both of you from a legal strategy standpoint. daniel sending it out to so many papers. how does that change the government's ability to prosecute the case? the one toould be answer that for us because he was directly involved. : it did make it harder to prosecute the prior restraint case, the case we have been talking about, and cans the times, and other papers that did bring actions against the post. the other papers who got the papers from ellsberg to stop them as well. one judge in the district of
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columbia court of appeals put it very well. when lawyers were in front of him on this case, and he said, stopre asking us to try to a swarm of bees from publishing material. there were so many entities publishing them so quickly that this so thaturting everyone could be enjoying get was getting to be impossible. i think that had a real impact on the supreme court. limity cannot effectively publications, what is the point of doing it? susan: daniel understood the concept of going viral. absolutely. that is a situation and floyd was there and knows. the the genie was out of
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bottle, and it was showing up everywhere, and you went through the timeline for the court. the supreme court of the united states had very little time to know what they were doing. the justices repeatedly said, we do not know what we are dealing with. we don't know what the facts are, we have not had time. in or more of the justices the dissenting opinion was quite critical of the new york times saying, you had three months to are givings and you us no time. some of the briefs were filed the same day as the oral argument in the united states supreme court. justices were frustrated because they did not have time, but they were also realists because they knew that all the stuff was happening. ellsberg had put it out everywhere. what did they do with the judicial decree to stop
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something from happening that was already happening. resorted to the fact that you could maybe prosecute these people, but we really cannot stop them from these documents, or this material from being out in the public because it is already out there. susan: in our next segment we will learn about the case at the supreme court. it is time for phone calls. hello and thank you. i have to say a quick congratulations. the landmark cases series is. pure gold. i apologize if this is a stupid question. thee i have no doubt that pentagon and other agencies abused their classification powers trying to keep secrets that would in no way have an impact on our national security, or servicemen, i think this
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ruling was very beneficial. a great thing for our nation. i had never quite understood, want their copyright laws back in the 1970's? the documents were taken from the rand corporation. didn't the rand corporation and pentagon have recourse to say this is our intellectual property and we have been working on this report for years. we will decide to publish it and you cannot sell your newspapers by selling our property. sorry if that is a stupid question. >> it is not stupid at all. it is very interesting. the papers belong to the united states of america. there is a statute, which says that the united states does not have copyright rights over papers. fortunately for us, that was nine issue. add that the solicitor general of the united states, and his argument for the government against the times
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cited copyright laws. just the way you just did. aook, if we had copyright on this we could ban it. this is worse than that. these are national security documents. surely we are to have the power to limit those documents from coming out for that reason. that is a very good question because in the arguments, in the supreme court, and one of the justices or more the new york times, you copyrighted your article. you intend to prevent other people from using the stuff that you have copyrighted so you want to have a prior restraint on somebody else taking your as under the copyright laws, yet you deny that same laws to the united states. it was a very interesting point. susan: next is stephen and
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washington, d.c. caller: what an honor. so great to talk to you. i admire and respect all three of you very much. i was wondering whether and to what degree the sharing of haslligence information been institutionalized between the media and various administrations and intelligence committees? floyd: do want to do that? susan: we have seen that in the last -- ted: we have seen that in the last two years and abundant detail. there are massive leaks of information. we all know about the wikileaks and the 2016 presidential election, there is this symbiotic relationship between the press and the people that get this and snowden and so forth. i were talking before we came on the show, floyd came up with some very important affidavits that show that it was
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happening and has happened for a long time. he showed the court that there is this sculpture in washington that involves the leaking of classified information to suit the government's purposes in various different context. floyd can explain this better than i can. the same thing we are talking about today in much greater volume was happening then. that was more as a question, or quite right using the word, it was almost institutionalized in that sense, a small group of journalists trained in this area, worked very closely with and received leaks from people in the government who wanted certain information out for some reason. some to promote national security, some to make sure that the army got more money than the air force. make sure that they did
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not get credit for something when they wanted someone else to get credit. that still exists. at this time, and there was a brilliant, brilliant affidavit formally thel, executive editor of new york times, which i really recommend to you all, outlining how the system, almost, of mutual benefit by leakage existed at that time. susan: rick is next in louisville, ohio. caller: the last 20 years i have had three books published. in detroit back in the 1960's and 70's. we were the greatest country in the history of mankind, we have laws in place, we had trade laws, cash laws, banking laws, antitrust laws, that the most precious of all laws that were created by the generation, the
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greatest generation that basically regulated the media. fairness doctrine and whatever. you are talking about vietnam, vietnam was started by lyndon johnson. lyndon johnson was a texan. the last high wars have been started by texans. we have been at war for 20 years . clear channel radio had 1500 a.m. radio stations during the bush administration. 18 comes out of the state of texas. georgia had cnn and time warner loaded with military bases. andeast coast, connecticut new york and california is your liberals, loaded with wall the treasuryd with and the federal reserve, and silicon valley. rick, i am going to jump
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in because you are taking us into a broader sense of the case. thanks for your call. time is short, with apologies i will move on to john in westlake village, california. is, themy question model that is bringing -- that is this proposed american model arising in the american constitution. question is, the british, they have a prior restraint law, they have a state secrets law, strict libel laws . they seem to have a pretty press, maybe even better than ours. why is the model that mr. abrams proposing better than the other model? susan: -- believe to have a better press -- they have a
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better press than we do. that is a judgment call. second, when british editors want upon -- want to publish something, they come here. that is what happens with the snowden materials that were through an american subsidiary through the guardian. british journalists are very envious, indeed, of the free press that we have. more broadly, yes, there are different ways for democratic societies to the organized, and in terms of striking balances liberty, andom, other important interests, we lean very heavily in the direction of more freedom of the press, more freedom of speech, i think that is a good idea but there are other ways to run legal systems. canada is more restrictive than we are.
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and whenour system, you read our cases, i think they are really very powerful. in the corps chief justice warren burger and we will tell you about the other members. the nixon appointees were justice burger and harry blackmun. the johnson appointees, thurgood byshall, kennedy appointees, written at white. eisenhower appointee is still on the court in 1971. potter stewart, hugo black and william douglas made up the nine. the case was heard on june 26, 1971, just 13 days after the new york times published that first article. there were two hours of oral arguments. we are going to listen to a little bit. tell me about how the legal team was assembled and what the decision was? chief counsel was professor law school.yale
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professor bickle, under who i studied at law school, was viewed in the lot -- in the language of those days as a conservative academic. frankfurter was, as he once put it to me, not a first amendment voluptuaries. he was not. criticism, --ny criticism of the times the lawyer presentation to the court, at every level made then and now, it was that we do not talk enough about the first amendment. we talked about separation of powers, we talked about statutes , we talked about a lot of things which we thought might be easier to attract the votes of conservative jurists on the court. susan: we will listen to a
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portion of alexander bickle's arguments before the supreme court. let me give you a hypothetical case. but us assume that one of the members of the court go back and record --is field sealed record. we find there is something there that absolutely convinces us that its disclosure would result in the sentencing to death of a hundred young men whose only offense had been that they were 19 years old and had low draft numbers. what should we do? justice, i wish there were a statute. that element of might attentive destination -- definition, which is the chain of migration -- threat is not a national
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. there is at least 25 americans killed in vietnam every week these days. >> i meant it is a case in which a chain of causation in the act of publication and the death of these hundred young men is obvious, direct, immediate. that in a casey in which, in the absence of a statute, i suppose, most of us would say -- >> you would say the constitution requires that it be published. >> no, i am afraid the inclinations of humanity have overcome an abstract devotion to the first amendment in the case of that sort. us to understand this hypothetical. what was the justice getting at? the justice was saying that i want you to assume that as a direct result of
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publication of the pentagon papers, 100 young men are going to get killed. you telling me that the first amendment requires that we allow that to be published? pickles firstssor es argument bickl anywhere. it was his first argument in the supreme court. the first thing he did, which is not quite to answer the question, try to bring the justice a little bit away from it, justice stewart would have none of that, insisted on a direct answer to the question and professor bickle gave what he considered, and i considered the most essential, critical and needed answer, which was, yes. in that situation, a prior restraint would be consistent with the first amendment. it was a controversial answer.
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the american civil liberties union the next day, the brief in the court denouncing that answer , a very rare thing in the supreme court to practice, that it was one that he thought was over or keepwin the votes of the two members of the court, justice stewart and justice white that we thought we needed the most. susan: one of our viewers wrote that this bit sounds like a gotcha, but not sure where. process -- ted: he is right, this is a gotcha kind of a question. it is the kind of hypothetical questions that justices asked, not to embarrass the advocates, find where the limits are. those are these kind of questions that advocates have to deal with in the supreme court. there is usually no perfect answer.
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you are talking to nine different supreme court's. it is not one supreme court. , what he had to do was to be mindful of the fact that he had certain number of votes that he was probably not going to lose. he had a certain number of folks that he would probably not win and justice stewart and justice white where the two that he needed. he needed one of the two or both of the two, if he could, to win the case. what he was doing -- for someone to have not argued in the supreme court before, i agree with floyd, this was a very careful answer. what he did was give a reasonable answer, he preserved his position, he did not lose a vote that he might otherwise have lost if he had taken a categorical position that, yes, this is an absolute thing under the first amendment. susan: i want to get erwin griswold's argument into our
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program. .he u.s. solicitor general you should know that he was nominated by lbj to that position and president nixon kept him on. but listen to some of his argument. of ourso think the heart cases that the publication of the materials specified in my closed brief will, as i have tried to argue there, materially affect the security and the united states. it will affect lives, it will affect the process of determination of the war, it will affect the process of recovering prisoners of war. i cannot say that determination of the war, or recovering prisoners of war is something which has an immediate effect on the security of the united states. i say that it has such an effect on the security of the united states that it ought to be the basis of an injunction in this case. susan: ted olson, what is he
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saying? ted: what he is saying is i am speaking on behalf of the united states. i am telling you, based upon the material that we have in the possession of the united states, that the publication of this material will damage the united states embarassed different -- and intangible ways. this is dangerous material. we have a responsibility to protect the united states and protect the citizens of the united states, and i am telling you, to the supreme court, don't let this happen because it will cause great harm. he is really putting it to them at that point. floyd: that is a very strong argument to make, even if it is not much supported. i don't want to say by the facts , but even if he cannot fight support of it. this is what the united states
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was saying from the moment the cases began. usingrd that they kept was irreparable. irreparable harm to the united states. their problem was, when they got in front of judges who asked them hard questions, the sort of, where is the thing? give me a document, show me a document, they cannot do it. susan: before we get onto the on twitter it reminds us that the papers were entered into the records of the senate by senator mike. we bring thewhen record of the united states congress into this? what did that due to the information? floyd: first, we do not know what affect, if any, it had on the court. we do not even know if the court knew it. ted: it was in the congressional
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record, right? just kidding. floyd: it obviously is a very strong argument against a prior restraint. what is the point? what are we doing? ,hy are we issuing court orders which implicates the first amendment if nothing is going to be served, is -- if everything is out already. so, to the extent that the known --s they became if the court thought about them, if they knew it was everything -- bearing in mind that the theory of this is the enemy will learn things from it, then it could of had an impact. i have not read anything from anybody in all the literature and memoirs indicating that it did. could hypothetically, it have. it could have set off another challenge of branches of
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government. congress against the administration. ted: yes, except there are other provisions that cause the speech and debate clause that insulates members of congress from innate liability for what they might put in the congressional record. susan: we are moving onto the decision, but first a couple more calls per josh in iowa. josh calls. josh in iowa. caller: my question is on justice black. how influential was he in this decision? susan: if you will hold on just one second, we will put some of justice black's concurrence on the screen. thanks to the question, we will get to it in five minutes. james in california. internet today, and the ability to just disseminate information , the wholeusly concept almost seems archaic.
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people can be punished after the fact. that may be the only way that -- then people will start -- stop publishing but someone will do it within the age of suicide .ombers people were certainly risk getting material out there. i just think this case looks interesting from a different age. it was not that long ago, but it was a different time. susan: his prior restraint archaic? no, they were different cases, different facts, different things published. the questioner has a very serious invalid point, to which i would only add that, we are talking in this case about 7000 papers -- pages. the largest leak in american history. edward snowden to millions, millions of pages, if you count
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it page by page, in terms of what he had access to. we are so far gone from those that, yes, itense may seem a little bit archaic. what is the same as that things occur where presidents do not want -- either because of national security concerns, personal or political concerns, or whatever, don't want certain things published. the effect i would say in the pentagon papers case is that, what they have assimilated from their advisors about the case is that they cannot keep it from being published. it is recent that presidents have called in the editor of the new york times, the publisher of the new york times, don't publish the fact that we are not certainwarrants for overhears within the country.
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is the abc news report on june 30 of 1971 when the case was filed. principlesitutional of clash. the government's view about national security versus the newspapers you of their freedom to print. the newspapers one. from the supreme court the issue was decided. here is abc's bill zimmerman. >> a dramatic for minutes late, reading the 63 decision. opinion quoted from 1963 case. any prior work holds a presumption questioning its priority for liddy. >> here's how those decisions came out. nine different
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opinions really out of this case. white joinedck, way stewart. three dissents. the chief justice joined by others. .et's go through -- prior work the government thus carries a heavy presumption against its constitutional validity. the government carries heavy burden of showing justification for the imposition of such a restraint. .ere is some of what it said paramount among the duty of a free press is to prevent any part of the government from
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deceiving the people and setting them off to distant lands to die of foreign fevers and foreign shots and shells. in my view, far from deserving condemnation for their courageous reporting, the new york times and the washington journal newspapers -- post newspaper should be commended. it was justice black's last .pinion on the court it was an opinion he was justifiably very proud of. enduringe of his , the new york times versus the united states. susan: i'm going to put two of the dissents on the screen. chief justice burger, in this case the imperative of a free
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and unfettered press comes into, collision with another imperative, the effective functioning of a complex modern government, and specifically the effective exercise of certain constitutional powers of the executive. only those who view the first amendment as anadolu in all circumstances, a view i respect but object, could find such a case as this to be simple and agency -- and easy. then i will move on to justice harlan. this took place in the name of the -- regard for the extraordinarily important and difficult questions involved in these litigations should have led the court to shun such a precipitate timetable. >> i should say that in addition to justice black, he was an absolutist who, as you read, the first amendment, congress should make no law abridging the freedom of speech from the press. he meant no law means no law. justice douglas also held that view. to get to the dissenting voices, you heard the justice say this frenzied pace.
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one of the other dissenting justices said it was a feverish pace. the court below that was reversed here had said, let's send it back to the district court for an opportunity to look at the various documents that are threatened here so that we know what we're doing. so these dissenting justices, in addition to disagreeing, they agreed there was a heavy burden with respect to prior restraints, but they also thought that we need to know what is going on. in our efforts to do our job, we need to know what risk there is an obesity government should -- what risk there is. hsouldt te government
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have a number of days, which is what the second circuit had ordered, to look at the documents and make judgments with respect to individual cases. we cannot be justices or judges of the damage that could be done here unless we know what we are looking at. and that is not such an unreasonable point of view, except that it clashes with the idea that there shall be no prior restraints, not even a short-term one. susan: we're going to show you the headlines in the two affected newspapers as we listen to a call from tennessee. caller: i was just wondering what was -- books each of you recommend to read more about the pentagon papers, and also what each of you like to read most days. >> i would say the best thing to read about the pentagon papers is floyd abrams' book, speaking freely. freely" is a
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tremendous analysis of the legal issues and the factual issues, and i reread it in connection with this program. that is one of the things i would strongly recommend. mr. abrams: i am so moved. how toing to think of respond. [laughter] abrams: there is a book
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called "the day the papers -- " something or other, a whole book on the pentagon papers case written somewhat more recently than mine. mine was a lawyer's look, on the ground, what was happening. i think if you read either one of them you will get a very good sense of it. susan: let's listen to how president nixon and j edgar hoover elected. >> edgar, i wanted to tell you i was so damn mad. i didn't like the decision. unbelievable, wasn't it? i hope i outlive the bastards. politically, too. >> is no question. i thought this was a possibility of 5-4. >> what in the hell is the matter with stuart? >> he is very wishy-washy. he switches from one side to the other. susan: isn't that priceless? your reactions? mr. olson: it is very predictable listening to various different tapes of nixon. if you listen to -- tapes from linden johnson and some of the language and has comments about things that were going on and probably other residents have felt the same way every time they lose a decision.
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i don't know whether they use i suspectanguage but you would hear similar language from other presidents. you have some very interesting cases in these series. presidents do not like to lose anything, particularly in the supreme court when they pray much now that is the end of the line. mr. abrams: i would just add the reference to justice stewart and justice white, it is quite right that they were the deciding vote. we had four votes when we came in and the question was always would we get two more. it was justice stewart's opinion which is generally viewed as the opinion of the court, in which he wound up saying that the only circumstance in which a prior restraint could issue in a case like this is when the government proves that the disclosure of the materials would surely result in direct and immediate and irrevocable harm to the
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nation. that's a tough standard to meet, and he meant it to be. susan: let's also show you some historic footage from abc on the reactions by katharine graham, ben bradlee and also sulzberger. >> my reaction was one of joy, one of delight, and now we will go back to business as normal. getting out the times. >> i never really doubted that this day would come and that we would win. sometimes it seems like it was going to be a little longer waiting than we had hoped, but here it is. we are starting publishing tomorrow. >> extremely gratified, not only from the point of newspapers, which is not the least of our concerns, but gratified from the point of the of the government, of good government, and from the point of view of the public and
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the public's right to know, which is what we were concerned with. >> we are free to publish what we always were going to publish, which is material which in our mind the public at a right to know and which did no damage to the u.s. that was our position when we started and it is our position today. susan: so reaction from the involved? we have 20 minutes left. where going to talk a little bit about what talked to daniel ellsberg than a larger discussion about this tension between the government and its desire to have national security secrets and the public's right to know. first of all, with the immediate reaction to this, the papers continue to publish stories, but then what happens? what was the result of all this? mr. abrams: i think it did have
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an effect on public opinion. it led to the freedom of information act being passed. that was a major step forward in terms of public information. it helped us on the dark side solidify the ever-growing breach between people who hated the press, as president nixon did, and people who were generally supportive of it on the other side. did it matter in terms of the war? it is hard to say. probably not.
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the pentagon papers is 1971, and it was years more of fighting. there is even an irony in that. what is the worst thing that came out of the pentagon papers? that we kept fighting the war when people in control new that we couldn't win it and did not do anything about it, except to continue to fight it. mr. olson: many people also feel there is a direct link between this case and the reaction in the nixon administration to what happened here and watergate. that the concern, the compulsive concern, some of it possibly justified, some of it not, about leaks. some people feel, and i think with justification, it led to the creation of president nixon of the plumbers to go into ellsberg's psychiatrists office and other places, and the compulsive concern about leaks and so forth led, inexorably, to
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what would happen to years later with watergate and the end of the nixon administration. susan: we're going to hear a little bit of that next with richard nixon on tape talking about how the administration should respond to daniel ellsberg. >> i just say that we have to keep our eye on ellsberg. we have got to get this son of a bitch. i was talking to someone over here yesterday. they were saying, well, maybe we ought to drop the case. i said, hello, no, you can't do that. you can't be in a position of ever allowing, just because some guy is going to be a martyr. of allowing a fellow to get away with this kind of wholesale fever here.
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-- thievery. otherwise it is going to happen all over the government. susan: so what happens to daniel ellsberg? the leaker? mr. abrams: he went back to his real-life. he talked, he wrote. susan: he was never prosecuted? mr. abrams: he was prosecuted for a time. nothing came of it. the prosecution which was brought about the pentagon papers was aborted by the fact of the break-in that had ted referred to, which the break-in commissioned by the president of the united states, which led the judge from california to say, this is conduct of such enormous unacceptability, so destructive of the judicial system, that this trial can't continue.
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so ellsberg didn't go to jail. but he should get a lot of credit for being willing to do something as dangerous to his own safety as this. susan: what do you think? mr. olson: everything that floyd said is correct. on the other hand, i would think that there were a couple other movies that were recently out, including a movie called "dunkirk," and we have seen movies about the landings at normandy. and that goes back to what we saw in the case in 1931 about the movement of troops and so forth. the government has got to be able to keep certain secrets. there are secrets with respect to how you construct nuclear weapons. there are secrets about where
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intelligence is gathered. there are secrets that the united states and other governments, but i am particularly talking about our government, needs to be able to keep certain secrets. daniel ellsberg thought he was right, thought he was doing the right thing. i am not arguing with that, at least in this context. but individually, we have a government of laws and not of men. there is a point at which individuals cannot make his decisions for themselves about what is in the best interest of the national security of the united states. and under some circumstances, prosecutions and other efforts that may be necessary to preserve and protect government secrets have to be something that is it part of the functioning of our government. susan: let's go back to calls. dan, new jersey. caller: hi. i am enjoying the show. so my question is, has the case
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been used as any precedence for any subsequent case, and has it changed anything regarding transparency, regarding the sunshine laws in the government? anything regarding the whistleblower protection laws? susan: thanks so much. mr. abrams: i think it is yes to all of those. it has certainly led to more transparency. as an mentioned earlier, we wouldn't have the freedom of information act but for what all we have been talking about. has it been cited in other cases? yes, and indeed in one case, the government for a time was winning. that was under president carter, in which the progressive magazine published an article titled how to build an h-bomb. they went to court under
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president carter. they said the pentagon papers case said it is a very heavy burden, absolutely. what happened then was that it was determined that the suppose secrets discussed and revealed in the progressive case were already known in the literature, and the government dropped the case and it was over. but the fact that the case is a general barrier of the issuance of prior restraint, even in the national security area, that does not mean that it is absolutely right. it's been cited in other areas in which judges in the criminal courts were entering prior restraints against publishing information, which is what the law is in england. information about a confession of a defendant before it was admitted into evidence.
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and the supreme court in the course of striking down that prior restraint cited the pentagon papers case, as other cases have as well. mr. olson: there is also the whole area of gag orders in criminal cases, where the judge might feel it is necessary to protect the rights of the criminally accused to tell the press, don't talk about -- told the lawyers in the case, don't talk about the evidence here. a private individual of his right for a fair trial. that is a different issue that it is not unrelated. susan: we talked to constitutional scholar michael paulson about this case and he said one thing it did is it created a gravitational pull. even if there is a violation of statutes that is hesitancy on the part of the government to pursue. would you agree? mr. olson: yes and no.
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we have seen during previous administrations, a spike in efforts to subpoena about what their sources are and efforts to prosecute under certain circumstances. yes, it has deterred, it has had that kind of affect. it also leads government to try to figure out if there are other ways in which we can protect secrets, and we can go after potential mental violations by attempting to find out where this is coming from. the justice department has specific rules about this which they are revising all the time, but that is one of the manifestations of it. mr. abrams: the major impact is in the area of the case itself, and that is prior restraints. it laid down a really tough barrier to overcome.
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if the government can't to win a case in the middle of a war at a time when american pow's are being held and the government was representing that publication would irreparably harm the nation, if they can't win that case, it will be very hard for them to win another in that area. in these other areas that ted is mentioning, look, we have a functioning government after all. we don't live in a society in which anyone can do anything, take anything, release anything, and run no risks for doing so. that is why edward snowden lives in moscow and not washington. susan: to that end, a twitter follower asks, is the freedom of the press the freedom of anyone to print or the freedom of one to print anything? mr. olson: to go back to justices black and douglas, the
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constitutional provisions as congress shall make no law, but there are obvious areas where there are laws that govern and relate to the freedom of the press. it is not just the freedom of press, but freedom of speech. those are very much overlapping, especially in today's world. freedom of speech and freedom of the press and who is a journalist and who can publish what, those are very, very blurry lines. there are all sorts of litigation that come out that it is very difficult to distinguish in some ways. mr. abrams: in some ways it is meaning less and less, which is to say in social media, we live in a world now where we are not asking all the time anymore are
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you a journalist or not. you have information, you want to talk about it? you either have a right or you don't have a right, and you generally do have a right to talk about it. anyone can generally spout off about just about anything they want, but not everything. when we are in a tiny area of the not everything, how to build an h-bomb, if no one knew, then it wouldn't matter a few a journalist or not, you would not be allowed to do it and he would go to jail if there were prosecution. susan: on twitter, ellsberg demonstrated respect for the law when he turned himself in. i never thought his decision to disclose the pentagon papers was easy decision for him to make. i just listened to a recent interview where he underscored he thinks of himself as a patriot throughout the so process. mr. abrams: he does. it should also be said ellsberg did not turn over to the times
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the entirety of the pentagon papers. he kept were called the negotiating volumes, which is to say volumes of the pentagon papers as they existed in 1968 relating to efforts to negotiate a way out of vietnam, because he wanted the war to end in vietnam and did not want to frustrate those efforts. so, the times did not have everything, it did not publish everything it had, but ellsberg did not give them everything, also. mr. olson: maybe it's a little bit of devils advocacy, but everybody who does something like this, every whistleblower, every person who leaks information thinks of themselves as a patriot. they are doing it because they think it is right, they think it
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is a better good. so you have to have been discussion at least of whether or not you have a legitimate government elected by the people subject to laws and subject to the constitution, can an individual decide it is better for me to do something to try to stop the war than to behave according to what the laws are with respect to government secrets and restraint? it is not as one-sided as the person who does the leaking thinks, i did it because it is in the best interest of my country. mr. abrams: it is true. it is part of what is usually civil disobedience. usually the people who do this
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are willing if necessary to pay the price for doing it, and there are people who have done it. i mean, i have been very critical of wikileaks and of mr. snowden. and with some of his revelations. and i am not alone in that. so, it is not that one cannot pass judgment. it is not even that everyone who acts on his own conscience therefore would be absolved from the consequences. but some people who do, i count ellsberg as one, are worthy of praise for doing it. susan: let me just get it on the record for those more notable cases in the past decade or so. the valerie plame case in 2003 in 2004, washington post reporting on military blacks i prisons in 2005, chelsea manning in 2010, the edward snowden leaks in 2013. one of our viewers rights, i'm worried about the ability to release volumes of material that makes the pentagon papers look like a trickle at a moments notice by a download by some low level employee. wikileaks-level leaks worry me. i thought chelsea manning was rightly prosecuted. mr. olson: that's the problem.
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the randworked for corporation as a government contractor. contractor.ed as a people work for government contracts are not even working for the government. in this age of computers and the internet and so forth, we allow fast amounts of information to be accessible to individuals. some people at very, very low levels of government were not being watched properly or not being supervised properly or not being trained properly or have not been checked out properly. some of the times when you see these things happen, these are individuals that maybe if people pay more attention they could have prevented these people from having access to lots and lots of potentially dangerous information. mr. abrams: are you talking about manning? a private of the army, with that sort of access? i agree. susan: we have three minutes left. one more thing to get on the record is the solicitor general at the time. in 1989 he published an op-ed
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called "secrets not worth keeping," where he said he was on the wrong side of history. we have time for one more call. john from texas. welcome. caller: thank you for taking my question. with regard to the standard of prior consent and its application with regard to the pentagon papers, how would that have been legally different had the conflict in vietnam been a declared war rather than an executive military action whose constitutional basis was more nebulous? mr. abrams: if all you did was to read the opinion, you would think it would have no effect, because the opinion was not based on the proposition that it was simply executive action. but i agree with the thrust of your question. i think if this were a situation of a declared war, i will go
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farther, a popular declared war, if this were world war ii redone and somebody started leaking information saying that i know better than the government, he would not have a lot of friends around, let alone i would also add that the press would not publish a lot of that sort of information for the same reasons of that the times did not publish a good body of information that it had and chose not to print in the pentagon papers. mr. olson: i agree with what floyd said. susan: i'm going to ask each of you to put a wrapper on this for our audience. in the context of the complex media environment in which we live today, what is the meaning of the pentagon papers case? what is the import of it for our society? mr. olson: i think it will
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always remain a precedent of the united states supreme court that the first amendment, the one thing that the first amendment protects is the ability to speak or to publish, except in extreme circumstances. there are ways in which speech in the press can be restrained with respect to libel or with respect to copyright or with respect to various different things, but generally speaking, telling someone that they can't speak, censoring speech, is something that the courts are going to look at with great skepticism. mr. abrams: i agree with all that. i would simply add that i think that the lesson, the impact of the case on american presidents has been to persuade them, their advisors and the like, that when somebody wants to print something, the president can't stop it.
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presidents are not going to court. presidents don't go to court. even when presidents feel strongly, that information should not be published. that doesn't mean that you can't have such a case, but it says something that the only case since 1971 when the pentagon papers was decided, was about the h-bomb, and we have not had one since. that is almost a non-weapon now of the presidency because of the pentagon papers. susan: because you worked inside 2 administrations, what we are your thoughts on the restraint of the presidency? mr. olson: presidents are always
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frustrated with what the press does and what the press says or doesn't say. people were determined, we must not let that happen again. that may have led to some decisions people thought were wrong. people would be motivated by their perceived need to protect the people of the united states from violence, terrorism, and to protect the security and independence of all of our citizens. susan: thank you to our partners at the national constitution center. audience forgiving our the benefit of the two of you. on theting talks tonight constitution and the first amendment. [captioning performed by the national captioning institute,
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which is responsible for its caption content and accuracy. visit] [captions copyright national cable satellite corp. 2018] ♪ next monday in on landmark in a convicted armed robber challenged his death sentence. his case and several others were hurt by the court. they ruled against him but they held stricter rules for states
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wishing to impose the death benefit -- death penalty. school professor who was also a former clerk for justice thurgood marshall and an advocate who has written numerous briefs in death penalty cases will be on. watch next monday at 9:00 p.m. on c-span. .ollow us we have resources on our website for background. the website has the companion book and the landmark cases podcast.
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♪ >> c-span's washington journal, live it every day with news and policy issues that impact you. coming up tuesday morning, discussing trump administration national security challenges such as the future of the iranian nuclear deal and upcoming talks with north korea. then two authors talk about the paperback edition of their book which includes new information about hillary clinton's failed 2016 presidential run. be sure to watch c-span's washington journal live at 7:00 p.m. eastern tuesday morning. join the discussion. >> live tuesday on the c-span networks that 2:00 p.m. on to spend, deputy attorney general ron rosenstein talks about the first amendment and the mission of the justice department. but none :00 a.m., the backlog
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of immigration cases with the director james mckendry. at collegem., a look sports and the potential implications of athlete compensation. >> israel he prime minister benjamin netanyahu gave a presentation saying iran has lied about the international nuclear deal. in a public presentation, the prime minister showed documents he said were obtained by an israeli intelligence operation. he also directed comments to the upcoming decision on the nuclear deal. this is just over 15 minutes. prime minister netanyahu: you
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may well know that they repeatedly deny having nuclear weapons. you can listen to iran's president -- >> nuclear weapons and other weapons of mass distraction have any place in a rands defense doctrine and contradict our ethical convictions. prime minister netanyahu: this was repeated by the prime minister. >> -- prime minister netanyahu: i am here to tell you one thing. a random lied. lied.n big-time.


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